FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOUTHEAST ALASKA CONSERVATION 

COUNCIL; SKAGWAY MARINE ACCESS

COMMISSION; LYNN CANAL

CONSERVATION, INC.; ALASKA

PUBLIC INTEREST RESEARCH GROUP;

SIERRA CLUB; NATURAL RESOURCES

DEFENSE COUNCIL,

Plaintiffs-Appellees,

v.

FEDERAL HIGHWAY ADMINISTRATION;

UNITED STATES DEPARTMENT OF

TRANSPORTATION; RAY LAHOOD, in

No. 09-35551 his official capacity as Secretary

of Transportation; UNITED STATES D.C. No.  FOREST SERVICE; DAVID C. MILLER, 1:06-cv-00009-JWS

in his official capacity as Division OPINION

Administrator for the Federal

Highway Administration; UNITED

STATES DEPARTMENT OF

AGRICULTURE; MARK REY, in his

official capacity as Under

Secretary of Agriculture; DENNIS

R. BSCHOR, in his official capacity

as Alaska Regional Forester,

Defendants,

and

STATE OF ALASKA,

Defendant-intervenor-Appellant. 

5891
Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

Argued and Submitted

July 26, 2010—Anchorage, Alaska

Filed May 4, 2011

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Schroeder;

Dissent by Judge O’Scannlain

5892 SEACC v. STATE OF ALASKA
COUNSEL

Katherine S. Glover, Juneau, Alaska, for plaintiffs-appellees

Southeast Alaska Conservation Council, et al.

Sean Lynch, Juneau, Alaska, for defendant-intervenorappellant State of Alaska.

5894 SEACC v. STATE OF ALASKA
OPINION

SCHROEDER, Circuit Judge:

The issue in this environmental case is whether the district

court properly ordered the State of Alaska to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive

construction of a new ferry terminal and highway through a

national forest. We hold the district court was correct under

settled environmental law.

Intervenor State of Alaska appeals the district court’s judgment in favor of Southeast Alaska Conservation Council and

five other groups (collectively, “SEACC”) in their suit against

the Federal Highway Administration (“FHWA”), the Department of Transportation, the Forest Service, the Department of

Agriculture, and individual federal officials. Alaska argues

the district court erred in holding that the Environmental

Impact Statement (“EIS”) issued by the FHWA for the Juneau

Access Improvements Project violated the National Environmental Policy Act (“NEPA”) by failing to consider as a project alternative any plan that would improve existing ferry

services in Lynn Canal, Alaska, without the construction of

new roads, ferries, or terminals. The district court vacated the

FHWA’s Record of Decision (“ROD”), which approved Alaska’s preferred alternative for the project, and enjoined all construction and activities that depended on the issuance of a

valid EIS, until one was prepared. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

I. FACTS & PROCEDURAL HISTORY

In the early 1990s, the Alaska Department of Transportation and Public Facilities (“ADOT”) initiated the Juneau

Access Improvements Project (“Project”) to improve surface

access between Juneau and the communities of Haines and

SEACC v. STATE OF ALASKA 5895
Skagway in the Lynn Canal corridor of Southeast Alaska.

Access to Juneau is possible by air and water. 

The available public surface transportation to and from

Juneau is the Alaska Marine Highway System (“AMHS”), a

state-owned ferry system operated by ADOT that provides

transportation to many of Alaska’s southeast coastal communities. AMHS service from Juneau connects to the continental

highway system in Prince Rupert, British Columbia, and Bellingham, Washington, to the south, and in Haines and Skagway to the north. The most commonly used access route to the

continental highway system is the northbound ferry.

Because the Project would involve federal lands, federal

funds, and environmental impacts, ADOT needed to obtain

approvals and permits from several federal agencies, including the FHWA. In June 1997, ADOT and the FHWA issued

a draft EIS for the Project, as required by NEPA, 42 U.S.C.

§ 4332. See AR 2693-4409. Over the next two years, ADOT

analyzed comments submitted regarding the draft EIS and

conducted further studies. In January 2000, Governor Tony

Knowles announced that ADOT’s preferred alternative for the

Project was a plan in the draft EIS calling for the construction

of a highway along the eastern side of Lynn Canal to a new

ferry terminal to be built near the Katzehin River Delta, but

stated that the alternative would not be actively pursued during his administration because of its high cost. He directed

ADOT to discontinue most work on the EIS. 

In 2002, Governor Frank Murkowski ordered the completion of the EIS. Because more than three years had passed

since the release of the draft EIS, ADOT, in December 2002,

reevaluated the adequacy of the earlier study. See 23 C.F.R.

§ 771.129(a). ADOT determined, and the FHWA concurred,

that there were sufficient changes in project alternatives and

potential environmental impacts to warrant preparation of a

supplemental draft EIS. ADOT and the FHWA released the

supplemental draft in January 2005, and allowed public com5896 SEACC v. STATE OF ALASKA
ment until March 21, 2005. Among those who submitted

comments was Plaintiff-Appellee SEACC. 

The supplemental draft EIS analyzed ten alternatives for

the Project. All but the first involved substantial construction

expenditures. The alternatives included: No Action Alternative — Continuation of existing mainline AMHS service and

fast ferry service in Lynn Canal, with the previously scheduled addition of a ferry shuttle service between Haines and

Skagway; Alternatives 2, 2A, 2B, and 2C — Various plans

that would include construction of a highway along the eastern coast of Lynn Canal (the “East Lynn Canal Highway”)

that either stretched all the way to Skagway or stopped at

some point short of Skagway where a new ferry terminal

would be constructed to provide shuttle service to and from

Skagway and Haines; Alternative 3 — Building two new

ferry terminals slightly north of Juneau—one on the east and

one on the west side of Lynn Canal—to provide ferry service

between Juneau and a 39-mile highway to Haines that would

be constructed on the western coast of the canal (the “West

Lynn Canal Highway”), with ferry service also offered

between Haines and Skagway; and Alternatives 4A, 4B, 4C,

and 4D — Four marine alternatives that would consist of constructing new ferries to operate in addition to continued mainline service in Lynn Canal. The supplemental draft EIS

identified Alternative 2 as the preferred alternative for the

Project. Under Alternative 2, the East Lynn Canal Highway

would extend from Juneau to Skagway, and a new ferry terminal would be constructed on the eastern shore of Lynn

Canal near the Katzehin River Delta to provide shuttle service

to Haines. 

In its comment letter to the FHWA, SEACC asserted that

the supplemental draft EIS violated NEPA. Among other contentions, SEACC argued that the analysis of Project alternatives in the supplemental draft EIS was inadequate because it

failed to consider practicable ways of improving ferry service

without expenditure of significant capital funds. Citing to refSEACC v. STATE OF ALASKA 5897
erendum votes and survey results, SEACC asserted that a

majority of the community in the Lynn Canal corridor preferred improving existing AMHS ferry services over building

a network of new roads. Despite this public support, however,

the supplemental draft EIS failed to analyze as a Project alternative any plan that would make changes to improve existing

ferry services without expending significant capital funds for

new roads, terminals, or ferries. SEACC attached as an

exhibit to its comment letter a May 2002 study by a consulting firm that suggested changes in AHMS’s management

structure, operations, and financial planning that would

reduce costs to the State while improving the existing ferry

service. SEACC also suggested that scheduling changes,

including revisions to current ferry routes, could be made to

the existing services that would provide greater flexibility and

improved opportunity for travel at a reduced user cost. 

In August 2005, ADOT issued a press release announcing

that it had changed its preferred alternative for the Project

from Alternative 2 to Alternative 2B. Alternative 2B would

terminate the new East Lynn Canal Highway at a point north

of the Katzehin River Delta, where a new terminal would be

built to provide shuttle ferry service to Skagway and Haines.

That service, in turn, would be supplemented by the new shuttle between Skagway and Haines contemplated in the No

Action Alternative. The change in preference from Alternative 2 to Alternative 2B was necessitated by the fact that a

portion of the East Lynn Canal Highway, as envisioned by

Alternative 2, would run through lands subject to § 4(f) of the

Department of Transportation Act, 49 U.S.C. § 303. Section

4(f) prohibits the Secretary of Transportation from authorizing the use of federal funds to finance the construction of

highways through a public park, recreation area, wildlife and

waterfowl refuge, or historic site, unless there is “no prudent

and feasible alternative to using that land.” 49 U.S.C.

§ 303(c). Alternative 2B did not run through lands subject to

§ 4(f).

5898 SEACC v. STATE OF ALASKA
ADOT and the FHWA issued the final EIS in January

2006. The final EIS dropped three Project alternatives considered in the supplemental draft EIS (Alternatives 2, 2A, and

2C) from consideration, because the FHWA had determined

that they would involve lands protected under § 4(f) of the

Department of Transportation Act. It retained the remaining

seven Project alternatives included in the supplemental draft

EIS (Alternatives 1, 2B, 3, 4A, 4B, 4C, and 4D), and provided

an analysis of each. The final EIS identified Alternative 2B,

involving construction of a new highway and ferry terminal,

as the preferred alternative. In analyzing the environmental

consequences of each of the remaining alternatives, the final

EIS identified several adverse environmental impacts that

might result from the selection and completion of the preferred alternative. These included: the loss of 70 acres of wetlands and 428 acres of terrestrial habitat, including 68 acres

of old-growth forest in reserves established by the United

States Forest Service (“USFS”), the possibility of up to a 26%

reduction in the brown bear habitat capability of the areas

impacted by the construction of the East Lynn Canal Highway, and the possible relocation of bald eagle nests, since the

East Lynn Canal Highway would be located within half a mile

of 92 bald eagle nests, and within 330 feet of 49 of those

nests. Responses to comments received during the comment

period for the supplemental draft EIS were included in an

appendix to the final EIS. Addressing SEACC’s concern that

the EIS’s analysis of ferry alternatives did not consider practicable ways of improving ferry services without expending

significant public funds, ADOT and the FHWA said only that

it could not increase service in the Lynn Canal without reducing service elsewhere:

[T]he No Action Alternative is a projection of future

Lynn Canal service based on existing AMHS assets

and the most recent Southeast Alaska Transportation

Plan. AMHS has experimented with different levels

and types of service in Lynn Canal and would likely

continue to do so in the future. While there are many

SEACC v. STATE OF ALASKA 5899
opinions on ways to improve ferry service in Lynn

Canal, there is no way AMHS can meet the purpose

and need for the project solely by making changes to

the current operational model. Absent construction

of new vessels, an increase in capacity would require

reduction in service outside of Lynn Canal.

ADOT began distributing the final EIS to the public and

made the document available electronically on its website in

late January 2006. The Environmental Protection Agency

published notice of the availability of the final EIS in the Federal Register on February 10, 2006. See Notice of Availability

of Environmental Impacts Statements, 71 Fed. Reg. 7040

(Feb. 10, 2006). ADOT encouraged interested parties to submit their comments on the final EIS by March 13, 2006.

SEACC, on March 13, 2006, submitted a comment letter

addressing the organization’s concerns with the final EIS.

SEACC faulted the final EIS as unreasonable for not considering an alternative to the Project that would increase capacity

and flexibility without requiring substantial initial capital

expenditures. SEACC said:

Rather than building new ferries, roads, or terminals,

ADOT could make more efficient use of the assets

it currently owns. Through more efficient management and scheduling, capacity can be increased dramatically, costs to the state and user can be lowered,

and flexibility and reliability can be increased. All of

this can be accomplished without the enormous initial expense of money, tremendous dangers, and ecological and cultural damage that would accompany

ADOT’s Preferred Alternative.

SEACC argued that the failure to consider such an alternative

in the final EIS violated NEPA. 

To remedy this deficiency, SEACC proposed a “Better

Ferry Service Alternative” that included specific changes to

5900 SEACC v. STATE OF ALASKA
improve the current ferry system in Lynn Canal, without

resorting to the construction of new ferries or terminals. The

suggested changes included modifications to the current ferry

schedule, reassigning mainline vessels, increasing the staff at

the ferry terminals, increasing the reservation staff, upgrading

the reservation website, producing and maintaining a reliable

schedule two years in advance, increasing marketing, reducing fares, and improvements to the management structure.

SEACC explained that other configurations of this plan were

possible, including the reassignment of vessels from other

communities during periods of peak demand in Lynn Canal.

SEACC acknowledged that such changes would lower service

to the communities from which the vessels were reassigned,

but stated such reassignments would be temporary and predictable, meaning schedules could be developed far in

advance to mitigate inconvenience. 

On April 3, 2006, the FHWA issued an ROD approving

Alternative 2B as the proposed action for the Project. In an

appendix to the ROD, the FHWA responded to the substantive comments it had received on the final EIS. Addressing

SEACC’s concern that the EIS should have included an analysis of a Project alternative that improved ferry services using

existing assets, the FHWA said:

The Final EIS explains that a TSM alternative would

require taking vessels from other parts of the system.

Reducing service in other parts of the system, or

using vessels made available by vessel replacement

in other system parts, would merely shift costs,

avoiding capital costs in Lynn Canal while increasing operation cost.

On May 3, 2006, ADOT sent a letter to the FHWA requesting a right of way for the Project from the USFS. The FHWA

forwarded the request to the USFS, and on May 22, 2006, the

USFS consented to the FHWA’s appropriation of the portion

of the right of way that is on lands within the Tongass

SEACC v. STATE OF ALASKA 5901
National Forest, for the purpose of constructing the East Lynn

Canal Highway. 

In August 2006, SEACC commenced this action under the

Administrative Procedure Act (“APA”) seeking review of the

Project on the grounds that it violated NEPA, the National

Forest Management Act, the Bald Eagle Protection Act, and

the Endangered Species Act. SEACC’s complaint sought both

declaratory and injunctive relief. It named federal agencies

and officials as defendants, but the State of Alaska sought and

received permission to intervene as a defendant in the action.

SEACC moved for summary judgment. SEACC argued

that the FHWA violated NEPA when it refused to consider in

the EIS a reasonable alternative that called for improved ferry

services using existing resources, and that the FHWA’s justifications for not considering this alternative were arbitrary.

The district court granted SEACC’s motion, holding that

NEPA had not yet been complied with. The court ruled that

the EIS failed to satisfy NEPA’s requirements “to consider or

properly reject proposed alternatives.” N. Alaska Envtl. Ctr. v.

Kempthorne, 457 F.3d 969, 979 (9th Cir. 2006). Thus, the

court vacated the ROD, remanded the USFS’s decision granting a right of way to the FHWA, and enjoined all construction

on the Project and any activities dependent on the issuance of

a valid EIS. The court entered its final judgment in this matter

on April 6, 2009, and the State timely appealed on June 4,

2009. See FRAP 4(a)(1)(B). The federal defendants’ appeal

was voluntarily dismissed September 8, 2009. They have filed

no briefs in this appeal.

II. DISCUSSION

NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions

significantly affecting the quality of the human environment.”

42 U.S.C. § 4332(2)(C). Challenges to an agency’s compliance with NEPA are reviewed under standards set forth in the

5902 SEACC v. STATE OF ALASKA
Administrative Procedure Act (“APA”). N. Idaho Cmty.

Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1152

(9th Cir. 2008); Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 865 (9th Cir. 2004). Under the APA, the

agency’s decision may be set aside only if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In making the determination concerning whether an agency decision was

“ ‘arbitrary or capricious,’ the reviewing court ‘must consider

whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Marsh v. Oregon Natural Resources Council, 490

U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). 

[1] Under NEPA’s applicable regulations, a federal agency’s EIS must “[r]igorously explore and objectively evaluate

all reasonable alternatives [to a proposed action], and for

alternatives which were eliminated from detailed study,

briefly discuss the reasons for their having been eliminated.”

40 C.F.R. § 1502.14(a). We have repeatedly recognized that

if the agency fails to consider a viable or reasonable alternative, the EIS is inadequate. See e.g. Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1038 (9th Cir. 2008); ‘Ilio

‘ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1095 (9th

Cir. 2006). 

[2] In N. Alaska Envtl. Ctr., a group of environmental

plaintiffs challenged an EIS issued by the Bureau of Land

Management (“BLM”) to open land in northern Alaska to oil

and gas leasing under NEPA, arguing, inter alia, that the EIS

failed to consider reasonable alternatives. 457 F.3d at 973. As

in the present case, an environmental group proposed an alternative in a comment to the draft EIS. Id. at 978. The so-called

Audubon Alternative recommended that the BLM make a

lower percentage of the land available for leasing. Id. In holding in that case that the EIS “adequately examined a range of

viable alternatives,” we noted that the EIS explained that the

SEACC v. STATE OF ALASKA 5903
proposed alternative was inconsistent with the project and

statutory mandates, and that the BLM specifically incorporated several of the Audubon Alternative’s recommendations

into the Preferred Alternative. Id. at 978-79. There was no

such explanation or modification in this case.

Accordingly, in this case, the district court held the Agency

did not consider a reasonable alternative as it was required to

do. See Alaska Wilderness Recreation & Tourism Ass’n v.

Morrison, 67 F.3d 723, 729 (9th Cir. 1995). In granting summary judgment to the plaintiffs, the district court held that

improving ferry services using existing resources was a reasonable alternative for improving transportation within Lynn

Canal, and that the FHWA therefore violated NEPA when it

failed to consider this alternative in the final EIS. See also

Citizens for a Better Henderson v. Hodel, 768 F.2d 1051,

1057 (9th Cir. 1985) (“The existence of a viable but unexamined alternative renders an environmental impact statement

inadequate”). As we said in Bob Marshall Alliance v. Hodel,

852 F.2d 1223 (9th Cir. 1988), “[i]nformed and meaningful

consideration of alternatives — including the no action alternative — is thus an integral part of the statutory scheme.” Id.

at 1228. 

The district court agreed with SEACC that the FHWA’s

justifications for not considering SEACC’s proposed alternative — that it would potentially reduce services elsewhere and

increase costs — were arbitrary, because all of the alternatives

that were considered in the EIS, particularly Alternative 2B,

posed the same risks. Any of the “build” alternatives considered in detail in the EIS, including Alaska’s preferred alternative to build a new road and terminal, would increase costs for

the state and could have the ripple effect of reducing service

elsewhere. The EIS estimated that each of the build alternatives would have initial capital costs of between $103 million

and $268 million. Although Alaska anticipated that the lion’s

share of these costs would be reimbursed by the federal government, the EIS still estimated that the net cost to the state

5904 SEACC v. STATE OF ALASKA
over the next thirty-five years would range between $70 million and $98 million for the build alternatives. This cost was

greater than the estimated $61 million the state would have to

pay over the same thirty-five year period under the only nonconstruction alternative considered in the EIS — the No

Action Alternative.

Additionally, the EIS’s estimates of the amount of federal

funding ADOT would receive for the build alternatives may

have been overly optimistic. The EIS estimated that the net

state cost for Alaska’s preferred alternative would be $88 million, but the ROD increased that estimate by $34 million after

the FHWA determined that less federal funding would be

available than ADOT had anticipated when it helped prepare

the EIS. As the supplemental draft EIS cautioned, reductions

in the anticipated amount of federal funding for the build

alternatives will force ADOT to delay or eliminate other

transportation projects it has planned. Thus, it is likely that

Alaska’s preferred alternative, if pursued, would have the ripple effect of reducing services elsewhere as money is shifted

from other transportation projects to cover the costs of building the new road and terminal in the Lynn Canal corridor.

The district court also rejected the defendants’ argument

that they had considered SEACC’s proposal in the final EIS’s

No Action Alternative. The district court pointed out that both

the EIS and the ROD expressly acknowledged that the No

Action Alternative would provide reduced, not improved,

ferry services. 

[3] The final EIS’s explanation of the FHWA’s consideration of a No Action Alternative is cursory. Three brief paragraphs first describe the “No Action Alternative” as an

updated 1997 plan for ferry usage, then assert that using more

ferries would reduce service elsewhere (without explaining

the comparative needs for such services) and finally note that

under the No Action Alternative AMHS could add ferries in

SEACC v. STATE OF ALASKA 5905
the future but would not build anything. The entire explanation, after the description of current service, is as follows:

The No Action Alternative is an updated version

of the 1997 Draft EIS Alternative 1, titled No

Build/Transportation System Management. Alternative 1 originally used the term No Build rather than

No Action to help clarify that the AMHS has and

would continue to implement new actions in the

Lynn Canal corridor. An example of an expected

AMHS addition to Lynn Canal is the use of the M/V

Aurora as a shuttle ferry between Haines and Skagway.

Transportation System Management (TSM) refers

to activities that maximize the efficiency of an existing system with little or no new construction. It is

generally applicable to transportation systems in

urban areas and typically involves options such as

fringe parking, ride sharing, designating highoccupancy vehicle (HOV) lanes, and traffic signal

timing optimization. Reassigning vessels to Lynn

Canal could be reviewed as a form of TSM, but

unlike more typical TSM measures, this would be at

the expense of service elsewhere. For this reason,

there is no TSM alternative in the Supplemental

Draft EIS range of alternatives and the term TSM is

not included in the Alternative 1 title.

New actions that AMHS may implement in the

Lynn Canal corridor include deploying different vessels (including new ones added to the system as a

whole) and changing schedules, but do not include

implementing a build alternative specific to the

Juneau Access Improvements Project.

(emphasis added). This explanation does not represent the

“substantial treatment” required by NEPA’s implementing

5906 SEACC v. STATE OF ALASKA
regulations to any non-construction alternatives. See 40

C.F.R. § 1502.14(b) (discussion in reasonable alternatives

section of EIS shall “[d]evote substantial treatment to each

alternative considered in detail including the proposed action

so that reviewers may evaluate their comparative merits”). 

[4] Alaska now asserts that “optimization” measures, such

as “maximizing the amount of time the systems are in operation each day, . . . scheduling fixed daily service . . . and, calculating vessel use and speeds based on operating history and

environmental conditions in Southeast Alaska,” were considered during preparation of the EIS. The EIS, however, itself

does not discuss what these measures were. Rather, the

FHWA acknowledged in a response to comments on the EIS

that “[t]he only improvement (or additional service beyond

current service) included in the No Action Alternative is the

addition of shuttle service between Haines and Skagway.”

The EIS thus falls below NEPA’s standards because it fails to

provide policymakers and the public with sufficient information to “make an informed comparison of the alternatives.”

Animal Def. Council v. Hodel, 840 F.2d 1432, 1439 (9th Cir.

1988), amended by 867 F.2d 1244 (9th Cir. 1989). While the

dissent asserts that the SEACC proposal is “remote and speculative,” dissent at 5911, given the dearth of reasoned explanation in the EIS for its rejection, the record does not permit

us to so conclude as a matter of law.

[5] At oral argument, counsel for Alaska suggested that

Chapter 1 of the EIS supplied the necessary analysis supporting the FHWA’s decision not to give detailed consideration to

SEACC’s proposal by demonstrating that all of the AMHS

ferries are currently running at full capacity. Chapter 1 of the

EIS, however, merely gives a historical overview of the

development of the ferry system in Lynn Canal, generally

describing what vessels have operated in Lynn Canal in the

past and what vessels currently operate there now. It contains

no analysis of ferry service to other areas, or of how the

assignment of additional vessels to Lynn Canal would affect

SEACC v. STATE OF ALASKA 5907
service elsewhere. Therefore, it does not provide any reasoned

support for the FHWA’s position that reassigning vessels was

not a reasonable alternative that required detailed consideration in the EIS. 

[6] The district court therefore properly concluded that it

was arbitrary for the FHWA to refuse to consider reassigning

vessels as a project alternative on the basis that it would

increase costs and reduce services elsewhere when the chosen

project alternative could have been rejected for the same reason. By failing to examine a viable and reasonable alternative

to the proposed project, and by not providing an adequate justification for its omission, the EIS issued by the FHWA violated NEPA. See 40 C.F.R. § 1502.14(a); Friends of Yosemite

Valley, 520 F.3d at 1038; ‘Ilio ‘ulaokalani, 464 F.3d at 1095.

AFFIRMED.

O’SCANNLAIN, Circuit Judge, dissenting:

The majority holds that the final environmental impact

statement prepared by the State of Alaska and the Federal

Highway Administration violates the National Environmental

Policy Act, 42 U.S.C. § 4321 et seq., by failing to consider

certain alternatives to the State’s proposed plan to improve

surface transportation to Juneau, Alaska. I respectfully dissent.

I

Under the National Environmental Policy Act (“NEPA”), a

federal agency proposing a major action “significantly affecting the quality of the human environment” must prepare an

environmental impact statement (“EIS”) that includes a “detailed” account of the “alternatives to the proposed action.” 42

U.S.C. § 4332(2)(C)(iii). The EIS must “[r]igorously explore

5908 SEACC v. STATE OF ALASKA
and objectively evaluate all reasonable alternatives, and for

alternatives which were eliminated from detailed study,

briefly discuss the reasons for their having been eliminated.”

40 C.F.R. § 1502.14(a).

“NEPA itself does not mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350

(1989). Rather, it “simply prescribes the necessary process”

by which agencies must take a “hard look” at the environmental consequences of their proposed actions. Id. (internal quotation marks omitted). Accordingly, the question in this case is

not whether the final EIS prefers the wrong alternative, but

rather whether it considers a reasonable range of alternatives.

As we explained in Headwaters, Inc. v. BLM, 914 F.2d 1174

(9th Cir. 1990):

Section 4332 does not require the consideration of

alternatives whose effect cannot be reasonably ascertained, and whose implementation is deemed remote

and speculative. Nor must an agency consider alternatives which are infeasible, ineffective, or inconsistent with the basic policy objectives for the

management of the area. Finally, NEPA does not

require a separate analysis of alternatives which are

not significantly distinguishable from alternatives

actually considered, or which have substantially similar consequences. Thus, an agency’s consideration

of alternatives is sufficient if it considers an appropriate range of alternatives, even if it does not consider every available alternative.

Id. at 1180 (internal quotation marks and citations omitted).

II

The majority holds that the final EIS fails to consider certain alternatives for improving surface transportation to

Juneau. According to the majority, the final EIS does not conSEACC v. STATE OF ALASKA 5909
sider the possibility of improving ferry service by maximizing

the use of existing infrastructure. Maj. Op. at 5897-98. In my

view, however, the final EIS includes just such an alternative:

the No Action Alternative.

As the final EIS explains, the No Action Alternative is

based on the absence of capital improvements to ferry service

in Lynn Canal. Thus, unlike the other alternatives considered

in the final EIS, the No Action Alternative includes no new

highways, terminals, or ferries. It is not the case, however,

that the Alternative contemplates no new improvements at all.

The final EIS makes clear that the No Action Alternative presumes the continued implementation of non-capital improvements, including measures designed to make the most of

existing infrastructure. Indeed, the final EIS expressly considers “deploying different vessels,” “changing schedules,” and

“experiment[ing] with different levels and types of service in

Lynn Canal” as part of the No Action Alternative. 

The majority asserts that the final EIS “expressly acknowledged that the No Action Alternative would provide reduced,

not improved, ferry services.” Maj. Op. at 5905-06. The suggestion is that the Alternative does not seriously contemplate

improvements in ferry service if it anticipates that such a

reduction would occur. The acknowledgment to which the

majority refers, however, must be read in context. The relevant portion of the final EIS states: “The No Action Alternative is a reduction below the current level of service due to

reduced mainliner frequency in Lynn Canal. Mainliner frequency would be reduced because of projected reduction in

the number of mainliners operating in the [Alaska Marine

Highway System or AMHS].” (emphases added). In short, the

reduction in service would be caused by a lack of capital

improvements, i.e., of new ferries servicing the canal. That

the No Action Alternative presumes such a reduction says

nothing about whether the Alternative contemplates the possibility of non-capital improvements. Just because there would

be a reduction in service from the lack of new ferries does not

5910 SEACC v. STATE OF ALASKA
mean that measures to maximize the efficiency of the existing

infrastructure have been ignored.

The majority also faults the final EIS for not specifically

considering the suggestion by the Southeast Alaska Conservation Council (“SEACC”) to improve ferry transportation by

reassigning two mainline vessels to service in Lynn Canal.

NEPA, however, “does not require the consideration of alternatives . . . whose implementation is deemed remote and

speculative.” Headwaters, 914 F.2d at 1180. Here, implementation of SEACC’s suggestion is both. As explained in the

final EIS, the No Action Alternative “is based on the most

likely AMHS operations in the absence of any capital

improvements specific to Lynn Canal,” as reflected in the

2004 Southeast Alaska Transportation Plan (“SATP”) developed by the Alaska Department of Transportation and Public

Facilities (emphasis added). SEACC’s proposal to reassign

two mainline vessels to round-trip service in the canal is

inconsistent with the SATP. Given that the SATP represents

“a comprehensive, intermodal, long-range transportation

plan” for the region, Alaska Stat. § 44.42.050(a), any possibility of implementing SEACC’s proposal is remote and speculative.

Moreover, NEPA does not require the consideration of “alternatives which are infeasible, ineffective, or inconsistent

with the basic policy objectives for the management of the

area.” Headwaters, 914 F.2d at 1180. As the final EIS notes,

reassigning two mainline vessels to round-trip service in the

Lynn Canal would come “at the expense of service elsewhere.” Although it is true, as the majority points out, that the

final EIS considers other alternatives that “would increase

costs for the state and could have the ripple effect of reducing

service elsewhere,” Maj. Op. at 5904, the costs associated

with SEACC’s proposal are qualitatively different. By diverting vessels from one route to another in contravention of the

SATP, the State would be directly depriving another area of

committed resources. It was not arbitrary or capricious for the

SEACC v. STATE OF ALASKA 5911
State to conclude that what amounts to robbing Peter to pay

Paul would be “infeasible, ineffective, or inconsistent with the

basic policy objectives of the area.” 

For these reasons, I believe the State reasonably concluded

that SEACC’s proposal to reassign mainline vessels did not

require separate analysis. Because the final EIS considers a

reasonable range of alternatives, it meets the requirements of

NEPA. Accordingly, I would reverse the judgment of the district court.

5912 SEACC v. STATE OF ALASKA